The State and the Trade Unions in Canada

(April 1930)

TORONTO, ONT. In his final address to the jury at the historical trial that outlawed the Communist Party in Ontario, the Crown Prosecutor declared that “the trade unions were not being attacked ... every institution throughout the country protected the trade union movement”. (Mail and Empire, Nov. 13, 1931) It is the purpose of this article to show that on the contrary, the legal status of the Canadian trade union movement, precarious enough before the repression of the Communist party, is more completely at the mercy of the capitalist state than ever. For the trade unions (we do not mean the officialdom) to accept the suave assurances of the Crown at their face value would lull them into a state of false security.

I.

Hostility to freedom of association in general is an early juridical phase of the capitalist reconstruction of society. The the last decades of the eighteenth century industrial and agrarian revolutions released business enterprise from the fetters of feudalism and mercantilism in favor of freedom of competition and contract. The French Declaration of Rights and the American Declaration of Independence breathe the same spirit of optimistic (and “rugged”) individualism as Adam Smith’s Wealth of Nations: The democratic state is conceived as a mass of free citizens, each of whom is an ultimate source of sovereign authority, which would be impeded by “artificial” groups. The end of law was to secure the absolute and universal natural rights of individuals, a conception very congenial to the English courts where for a century and a half the doctrine of laissez-faire masquerade in the guise of “public policy”.

In the eyes of the law, the wage-laborer was on a footing of formal equality with all other citizens. But whatever the philosophical speculation of Rousseau, the device of universal suffrage merely ignores economic classes; it does not destroy them. Sovereignty in reality passed from the landed interest to the money power. The “new freedom” brought glittering prizes to the capitalist entrepreneur: to the proletarian it brought the factory system, low wages, long hours, slums and unemployment. Divorced from the ownership of the means of production, the wage-worker had only a Hobson’s choice. From the very outset the employer was a combination in himself. To speak of the freedom of the labor contract under these circumstances was a mockery. In the later stage of capitalist consolidation and monopoly, the unorganized worker is more than ever a helpless figure in his own fate.

Trade unionism was the organized refusal of the workers to submit passively to the rigors of the sacred “wage fund” and the “inexorable laws of supply and demand.” The trade unions, in Marx’s phrase, were centers of resistance to the encroachments of capital. Neither the value of the workers’ commodity labor power, nor his standard of living in general are fixed automatically out by way of struggle. The first attempts, however, to combine in trade unions encounters the savage repression by the State. A series of combination acts in Great Britain declare a trade union an unlawful society and the strike a crime The penal codes of other countries likewise deem “collective bargaining inconsistent with “liberty”. Nevertheless, the workers organize secretly and strikes break out despite long terms of imprisonment for the leaders.

Against the right to combine, the capitalist courts invoked two doctrines (a) the doctrine of conspiracy and (b) the common-law rule holding as unlawful all combinations in restraint of trade. Originally limited to specific offences, the judges, when faced with the problem of association, extended the conspiracy doctrine to combinations of workers. Conspiracy was the agreement “to commit any unlawful act or any lawful act by unlawful means.” The attempt of “Old Toryism” to enforce customary wage rates fixed by Justice of the Peace, long after the craft guilds had lost their power, was doomed. The Combination Laws, passed in additional fear of the French Revolution were repealed in 1824–25. The judges, however, gave form to the doctrine that a conspiracy in restraint of trade is indictable independently of statute.

The growing resistance of the workers and the strength of their political agitation, combining with the circumstances of an expanding capitalism, resulted though with considerable unevenness in a stage of concessions. The Trade Union Acts of 1871 and 1906 gave the unions in Great Britain particularly, immunity from liability under the doctrine of conspiracy in both its criminal and civil aspects. That was a period when “democratic” reformism appeared to have achieved great triumphs. Combination was no longer unlawful. The right to strike and to picket were freed from the fear of the injunction (we are not here speaking of the United States). Domestic and inter-union affairs were more or less safeguarded from the jurisdiction of the courts. Their funds were protected against embezzlement.

But a reactionary counter-current was at work even then. Already in 1902 the impeccably Fabian Webbs had to record in their Industrial Democracy that “the public opinion of the propertied and professional classes is in fact even more hostile to trade unionism than it was a generation ago ... Under this adverse bias the courts of law have for the last ten years been gradually limiting what were supposed to be the legal rights of trade unions.” At the present day, the capitalist class is once again engaged in sharp restriction of trade union activities. The Emergency Powers Act and Trade Union Act of 1927 are scarcely to be regarded as landmarks of greater class harmony in England, which experienced the great General Strike.

In the United States, Canada, and Australia, in addition to the former merely permissive, there is now coercive legislation regarding strikes and lockouts. Australia and New Zealand, the stamping fields of “Labor Governments”, have made compulsory both arbitration through administrative tribunals and compliance with the award. Statutes forbid the boycott, peaceful picketing and even the simple strike. Use of the injunction to enforce compliance with these prohibitions is sanctioned and violation of the statutes made punishable by criminal proceedings. The high-water mark of the capitalist control, or rather dissolution, of the trade unions was reached by the Fascist government in Italy which declared its policy to be “the break with laissez-faire liberalism and the socialism of class-welfare”. The independent unions have been outlawed. Strikes are repressed like sedition. The Fascist “unions” are incorporated in the state-machine, under the supervision of a “Minister of Corporations.”